3696-10-PE Ontario Nurses' Association, Applicant v. "Participating Nursing Homes", Respondent v. Ministry of the Attorney General, Intervenor.
1507-11-PE Service Employees International Union, Local 1, Applicant v. "Participating Nursing Homes", Respondent v. Ministry of the Attorney General, Intervenor.
BEFORE: Mary Anne McKellar, Acting Chair, Catherine Bickley and Carla Zabek, Members.
DECISION OF THE TRIBUNAL: October 15, 2013
These are applications under the Pay Equity Act ("the Act") in respect of which continuation hearings have been scheduled for several days commencing October 17, 2013 and extending into February 2014. These hearing dates are devoted to determining the threshold issue of whether the Act obliges employers to maintain a proxy pay equity plan, and if it does not, whether that contravenes the Canadian Charter of Rights and Freedoms ("the Charter"). The parties have commonly referred to these issues as the "first phase" of the hearing. Should there be an obligation to maintain a proxy pay equity plan, then the question of whether these responding parties ("the Nursing Homes") have satisfied that obligation or not would only be determined after a second round of hearing dates, likely commencing no earlier than mid-2014.
The intervenor's ("the Attorney General's") only interest in this proceeding is in the Charter question raised in the first phase. Due to a recent change of counsel, the Attorney General seeks to have a number of the currently scheduled continuation days ("the 2013 days") adjourned and rescheduled. There has been a flurry of correspondence to the Tribunal on this issue. The applicants appear to be agreeable to that rescheduling provided certain conditions are satisfied, although it is not clear whether they can be satisfied, or whether the Attorney General consents to those conditions. The Nursing Homes have not indicated whether they are agreeable to the request to reschedule, but they have made some submissions on the practicability of the applicants' conditions to that rescheduling being satisfied. Although there was some suggestion that a conference call with the panel prior to the hearing might resolve the parties' impasse, it is not at all clear whether we were expected to deal with whether a request for a contested adjournment should be granted, or whether the hope was that we might facilitate the parties in reaching agreement on the terms for adjourning and rescheduling the 2013 days (or some of them). With the exception of the Nursing Homes' counsel, no party indicated when it might be available for a conference call. In these circumstances, we do not think a conference call would be particularly useful, even assuming a mutually agreeable time to hold one could be found.
The hearing scheduled for October 17, 2013 will proceed as scheduled, however, it will be dedicated to resolving the case management issues posed by the recent change of counsel for the Attorney General. No witness need attend. For greater clarity:
a) Counsel for each of the parties should attend at the Tribunal's premises located at 505 University Avenue, 2nd Floor, Toronto, Ontario at 9:30 a.m. on October 17, 2013;
b) The counsel who attends need not be the individual(s) who will be attending the hearing on the merits on behalf of his/her client, but must be in a position to provide the information contemplated in paragraph (e) below;
c) The parties shall have from 9:30 a.m. until 11:00 a.m. in which to explore with one another the terms on which they might be prepared to agree to the adjournment and rescheduling of some or all of the 2013 days;
d) The panel will attend at 11:00 a.m., and may either attempt to facilitate the parties' reaching agreement on acceptable terms for adjourning and rescheduling some or all of the 2013 days, or may hear and decide the parties' submissions on whether the days should be adjourned, and if so, what conditions the Tribunal should impose;
e) Counsel in attendance at the hearing should be in possession of or able to readily obtain, information respecting the available dates for: either or both of lead counsel and co-counsel for each party; the instructing client; and any witness who is yet to be called by the party; for the period between October 17, 2013 and the end of May 2014; and
f) The parties should have instructions and be prepared to discuss alternative means of hearing the balance of the testimony anticipated to be adduced in this phase of the hearing, for example, declarations, video- or tele- conferencing.
Dated at Toronto this 15th day of October, 2013.
"Mary Anne McKellar"
Mary Anne McKellar, Acting Chair
"Catherine Bickley"
Catherine Bickley, Member
"Carla Zabek"
Carla Zabek, Member